Short Title Short title 1 This Act may be cited as the  Public Sector Integrity Act . 2005, c. 46 Public Servants Disclosure Protection Act 2 The third paragraph of the preamble of the  Public Servants Disclosure Protection Act  is replaced by the following: confidence in public institutions can be enhanced by establishing effective procedures for the disclosure of wrongdoings and for  the protection of  public servants who  are involved in the disclosure of  wrongdoings, and by establishing a code of conduct for the public sector; 3 (1) The definition  investigation  in subsection 2(1) of the Act is replaced by the following: investigation  means, for the purposes of sections 24, 25, 26 to 31, 33, 36 and 37, an investigation into a disclosure and an investigation commenced under section 33. ( enquête ) (2) The portion of the definition  protected disclosure  in subsection 2(1) of the Act before paragraph (a) is replaced by the following: protected disclosure  means a disclosure that is made by a public servant (3) The definition  public servant  in subsection
2(1) of the Act is replaced by the following: public servant  means every person employed in the public sector,  every person retained under contract to perform services for the public sector , every member of the Royal Canadian Mounted Police and every chief executive. ( fonctionnaire ) (4) The portion of the definition  reprisal  in subsection 2(1) of the Act before paragraph (a) is replaced by the following: reprisal  means any of the following measures taken against a public servant because the public servant has made a protected disclosure,  has witnessed another public servant making a protected disclosure, has collab­orated with another public servant in the making of a protected disclosure, has been mistaken for a public servant who made a protected disclosure  or has cooperated in an investigation into a disclosure or an investigation commenced under section 33:  (5) The definition  reprisal  in subsection 2(1) of the Act is amended by replacing paragraph (c) with the following: (c) the termination of employment  or contract  of the public servant, including, in the case of a member of the Royal Canadian Mounted Police, a discharge or dismissal; (c.1) an act or omission that constitutes a failure to provide support to the public servant as required  under  paragraph 11(1)(a); 4 Paragraphs 8(c) to (f) of the Act are replaced by the following: (b.1) a case of abuse of authority; (c) a mismanagement in the public sector; (c.1) political interference in the public sector; (d) an act or omission that creates a danger to the life, health or safety of persons, or to the environment, other than a danger that is inherent in the  perform­ ance  of the duties or functions of a public servant; (e) a breach of a code of conduct established under section 5 or 6; and (f) directing or counselling a person to commit a wrongdoing set out in any of paragraphs (a) to (e). 5 Paragraph 11(1)(a) of the Act is replaced by the following: (a) provide support to a public servant who has made a protected disclosure, has witnessed another public servant making a protected disclosure, has collaborated with another public servant in the making of a protected disclosure or has been mis­ taken  for a public servant who made a protected disclosure; (a.1) subject to paragraph (c) and any other Act of Parliament and to the principles of procedural fairness and natural justice, protect the identity of persons involved in the disclosure process, including that of persons making disclosures, witnesses and persons alleged to be responsible for wrongdoings; 6 Sections 12 to 14 of the Act are replaced by the following: Disclosure to supervisor or officer 12 A public servant may disclose any information that  he or she  believes could show that a wrongdoing has been committed or is about to be committed, or that could show that  he or she  has been asked to commit a wrongdoing to  any  supervisor  or officer in the portion of the public sector in which he or she is employed  or to the senior officer designated for the purpose by the chief  exec­ utive of the portion of the public sector in which  he or she  is employed. Disclosure to the Commissioner 13 (1) A public servant  or former public servant  may disclose information referred to in section 12 to the Commissioner. Exception (2) Nothing in this Act authorizes a public servant  or former public servant  to disclose to the Commissioner a confidence of the Queen’s Privy Council for Canada in respect of which subsection 39(1) of the  Canada Evidence Act  applies or any information that is subject to solicitor-client privilege. The Commissioner may not use the confidence or information if it is disclosed. Disclosure concerning the Office of the Public Sector Integrity Commissioner 14 A disclosure that a public servant  or former public servant  is entitled to make under section 13 that concerns the Office of the Public Sector Integrity Commissioner may be made to the Auditor General of Canada who has, in relation to that disclosure, the powers, duties and protections of the Commissioner under this Act. 7 The portion of section 15.1 of the Act before paragraph (a) is replaced by the following: Requirements when making a disclosure 15.1 In making a disclosure under this Act, a public servant  or former public servant  must 8 (1) The portion of subsection 16(1) of the Act before paragraph (a) is replaced by the following: Disclosure to public 16 (1) A disclosure that a public servant  or former public servant  may make under sections 12 to 14 may be made to the public if there is not sufficient time to make the disclosure under those sections and the public servant  or former public servant  believes on reasonable grounds that the subject-matter of the disclosure is an act or omission that (2) Paragraph 16(1)(b) of the Act is replaced by the following: (b) constitutes an imminent risk of a danger to the life, health  or  safety of persons, or to the environment. (3) Subsection 16(2) of the Act is replaced by the following: Rights not affected  (2) Nothing in subsection (1) affects the rights of a public servant  or former public servant  to make to the public in accordance with the law a disclosure that is not protected under this Act. 9 Section 18.1 of the Act is replaced by the following: Other obligations to report 18.1 Nothing in this Act relating to the making of disclosures is to be construed as affecting any obligation of a public servant  or former public servant  to disclose, report or otherwise give notice of any matter under any other Act of Parliament. 10 (1) Subsections 19.1(1) and (2) of the Act are replaced by the following: Complaints 19.1 (1) A public servant or former public servant who  believes  that a reprisal has been taken against  them  may file with the Commissioner a complaint in a form acceptable to the Commissioner. The complaint may also be filed by a person designated by the public servant or former public servant for the purpose. Time for making complaint (2) The complaint must be filed  within one year  after the day on which the complainant knew, or in the Commissioner’s opinion ought to have known, that the reprisal was taken. (2) Subsection 19.1(4) of the Act is repealed. (3) Paragraph 19.1(5)(b) of the Act is replaced by the following: (b) the complaint is filed within  one year  after those procedures have been exhausted. 11 The Act is amended by adding the following after section 19.1: Complaint concerning the Office of the Public Sector Integrity Commissioner 19.11 A complaint under section 19.1 that concerns the Office of the Public Sector Integrity Commissioner may be filed with the Auditor General of Canada who has, in relation to that complaint, the powers, duties and protections of the Commissioner under this Act. 12 (1) Paragraphs 19.3(1)(a) to (d) of the Act are replaced by the following: (a) if the complainant is a member or former member of the Royal Canadian Mounted Police, the subject-matter of the complaint has been adequately dealt with by the procedures referred to in subsection 19.1(5); or (b) the complaint is beyond the jurisdiction of the Commissioner.  (2) Subsections 19.3(2) and (3) of the Act are repealed. 13 Subsections 19.4(4) and (5) of the Act are replaced by the following: Effect of not dealing with complaint (4) If the Commissioner decides not to deal with a complaint and sends the complainant a written notice setting out the reasons for that decision, the period of time that begins on the day on which the complaint was filed and ends on the day on which the notice is sent is not to be included in the calculation of any time the complainant has to avail himself or herself of any procedure under any other Act of Parliament or collective agreement in respect of the measure alleged to constitute the reprisal. 14 Subsection 19.5(3) of the Act is amended by striking out “and” at the end of paragraph (b), by adding “and” at the end of paragraph (c), and by adding the following after paragraph (c): (d) in the case where the complainant makes an application to the Tribunal for the orders referred to in subsection 21.01(1) in respect of the complaint, the day on which the Tribunal makes a determination that the complainant was not subject to a reprisal taken by the person. 15 Subsection 19.6(3) of the Act is amended by striking out “and” at the end of paragraph (c) and by adding the following after that paragraph: (c.1) in the case where the complainant makes an application to the Tribunal for the orders referred to in subsection 21.01(1) in respect of the complaint, the day on which the Tribunal makes a determination that the complainant was not subject to a reprisal taken by the person, and 16 Subsection 20.2(3) of the Act is replaced by the following: Application barred (3) If the Commissioner approves a settlement that relates to disciplinary action, if any, that is to be imposed on a person, (a) the Commissioner may not apply to the Tribunal for an order referred to in paragraph 20.4(1)(b) in respect of the person; and (b) the complainant may not apply to the Tribunal for an order referred to in subsection 21.01(1) in respect of the person. 17 Subsection 20.4(3) of the Act is amended by adding “and” at the end of paragraph (a) and by replacing paragraphs (b) to (d) by the following: (b) the complaint should be dismissed on any ground mentioned in  paragraph 19.3(1)(a) or (b) . 18 The heading before section 21.1 of the Act is replaced by the following: Applications  to the Tribunal 19 The Act is amended by adding the following before section 21.1: Application by complainant 21.01 (1) A complainant whose complaint is dismissed by the Commissioner under section 20.5 may apply to the Tribunal for a determination of whether or not a reprisal was taken against him or her and, if the Tribunal determines that a reprisal was taken, the complainant may apply for an order respecting a remedy in his or her favour and an order respecting disciplinary action against any person or persons identified by the complainant in the application as being the person or persons who took the reprisal. Time for making application (2) The application must be filed not later than 60 days after the day on which the complainant is notified under section 20.6. 20 Subsection 21.1(1) of the Act is replaced by the following: Assignment of member or members  21.1 (1) On receipt of an application made by  a complainant under subsection 21.01(1) or by  the Commissioner under subsection 20.4(1), the Chairperson of the Tribunal must assign a member of the Tribunal to deal with the application, but the Chairperson may assign a panel of three members if he or she considers that the complexity of the matter requires that it be dealt with by three members. Every decision of the member or panel is a decision of the Tribunal. 21 The Act is amended by adding the following after section 21.3: Proof of reprisal 21.31 An application made by the Commissioner to the Tribunal under subsection 20.4(1) is, in the absence of evidence to the contrary, proof that a reprisal was taken against the complainant.  22 (1) Subsection 21.4(2) of the Act is amended by striking out “and” at the end of paragraph (b), by adding “and” at the end of paragraph (c), and by adding the following after paragraph (c): (d) the person or persons identified in the application as having taken the alleged reprisal. (2) Subsection 21.4(3) of the Act is repealed. 23 Subsection 21.5(1) of the Act is replaced by the following: Determination — paragraph 20.4(1)(b) and subsection 21.01(1) 21.5 (1) On application made for the orders referred to in paragraph 20.4(1)(b)  or subsection 21.01(1) , the Tribunal must determine whether the complainant has been subject to a reprisal and whether the person or persons identified by the Commissioner  or the complainant, as the case may be , in the application as having taken the alleged reprisal actually took it. If it determines that a reprisal was taken, the Tribunal may, regardless of whether or not it has determined that the reprisal was taken by the person or persons named in the application, make an order granting a remedy to the complainant. 24 Section 22 of the Act is amended by adding the following after paragraph (a): (a.1) assess the internal disclosure procedures established by a chief executive under section 10 and, on the Commissioner’s own initiative or at the request of any party, conduct a review of the receiving of and dealing with disclosures of wrongdoings under those procedures; 25 Section 23 of the Act is repealed. 26 Paragraph 24(1)(c) of the Act is repealed. 27 Paragraph 25(1)(j) of the Act is repealed. 28 Paragraph 25.1(1)(e) of the Act is replaced by the following: (e) any public servant  or former public servant  who is considering making a complaint under this Act regarding an alleged reprisal taken against him or her; or 29 Subsection 33(1) of the Act is replaced by the following: Power to investigate other wrongdoings 33 (1) If, during the course of an investigation or as a result of any information provided to the Commissioner by a person who is not a public servant, the Commissioner has reason to believe that another wrongdoing, or a wrongdoing, as the case may be, has been committed, he or she may, subject to  section  24, commence an investigation into the wrongdoing if he or she believes on reasonable grounds that the public interest requires an  investigation.  The provisions of this Act applicable to investigations commenced as the result of a disclosure apply to investigations commenced under this section. 30 Section 34 of the Act is repealed. 31 Subsection 35(1) of the Act is replaced by the following: Remittal of information 35 (1) If the Commissioner has reasonable grounds to suspect that information obtained in the course of an investigation may be used in the investigation or prosecution of an alleged contravention of any Act of Parliament or of the legislature of a province, he or she may, in addition to or in lieu of continuing the investigation, remit the information, at that point in time, to a peace officer having jurisdiction to investigate the alleged contravention, to the Attorney General of Canada or  to the Auditor General of Canada . 32 Paragraph 37(b) of the Act is replaced by the following: (b) a situation that has come to his or her attention in the course of carrying out his or her duties exists that constitutes an imminent risk of a danger to the life, health or safety of persons, or to the environment. 33 (1) Paragraphs 38(2)(b) and (c) of the Act are replaced by the following: (b) the number of disclosures received,  broken down by type of wrongdoing , and the number of them that were acted on and those that were not acted on; (c) the number of investigations commenced under this Act,  the number of investigations concluded, the average duration of an investigation and a summary of investigations that, in the Commissioner’s opinion, are of interest to Canadians ; (2) Section 38 is amended by adding the following after subsection (2): Details (2.1) The information referred in paragraphs (2)(a) to (d.1) is to be broken down by portion of the public sector and by region of Canada.  34 Section 40 of the Act is replaced by the following: False statements 40 No person shall, in a disclosure of a wrongdoing or in the course of any investigation under this Act, knowingly make a false or misleading statement, either orally or in writing, to a supervisor,  an officer , a senior officer, the Commissioner or a person acting on behalf of or under the direction of any of them. 35 The portion of subsection 42.1(1) of the Act before paragraph (a) is replaced by the following: Prohibition — employer 42.1 (1) No employer shall take any of the following measures against an employee by reason only that the employee has, on the basis of reasonable belief, provided information concerning an alleged wrongdoing in the public sector to the Commissioner or, if the alleged wrongdoing relates to the Office of the Public Sector Integrity Commissioner, to the Auditor General of Canada — or by reason only that the employer believes that the employee will do so: 36 Subsections 42.2(1) and (2) of the Act are replaced by the following: Prohibition — termination of contract or withholding of payments 42.2 (1) A public servant or any person purporting to act on behalf of Her Majesty in right of Canada or a portion of the public sector shall not terminate any contract with Her Majesty in right of Canada or any portion of the public sector, or withhold any payment that is due and payable in respect of any such contract, by reason only that the other party to the contract or any of that other party’s employees has, on the basis of reasonable belief, provided information concerning an alleged wrongdoing in the public sector to the Commissioner or, if the alleged wrongdoing relates to the Office of the Public Sector Integrity Commissioner, to the Auditor General of Canada. Prohibition — entering into contract (2) A public servant or any person purporting to act on behalf of Her Majesty in right of Canada or a portion of the public sector shall not, in considering whether to enter into a contract with a person, take into account that the person or any of the person’s employees has, in the past, on the basis of reasonable belief, provided information concerning an alleged wrongdoing in the public sector to the Commissioner or, if the alleged wrongdoing relates to the Office of the Public Sector Integrity Commissioner, to the Auditor General of Canada. 37 Paragraphs 42.3(a) and (b) of the Act are replaced by the following: (a) an indictable offence and liable to a fine of not more than $ 200,000  or to imprisonment for a term of not more than two years, or to both that fine and that imprisonment; or (b) an offence punishable on summary conviction and liable to a fine of not more than $ 100,000  or to  im­ prisonment  for a term of not more than six months, or to both that fine and that imprisonment. 38 The Act is amended by adding the following after section 44.1: Identity of persons involved in disclosure 44.2 The Commissioner and every person acting on behalf of or under the direction of the Commissioner may disclose the identity of any person involved in the disclosure process, including that of a person making a disclosure, a witness and a person alleged to be responsible for wrongdoings, with the consent of that person. Disclosure of information obtained in the course of an investigation 44.3 Subject to the provisions of this Act and any other Act of Parliament, the Commissioner may disclose to a chief executive or the Tribunal any information obtained in the course of an investigation if, in the Commissioner’s opinion, the public interest in making the disclosure clearly outweighs the potential harm from the disclosure.  39 (1) The portion of subsection 49(1) of the Act before paragraph (a) is replaced by the following: Restriction 49 (1) Subject to subsections (2) and (3), when making a report under section 38, the Commissioner shall not disclose any information that the Government of Canada or any portion of the public sector is taking measures to protect, including, but not limited to, information that (2) Paragraph 49(3)(a) of the Act is replaced by the following: (a) the disclosure is necessary to establish the grounds for any finding or recommendation in a report under section 38; and 40 The portion of section 51 before paragraph (a) is replaced by the following: Saving 51 Subject to  subsection  21.8(4), nothing in this Act is to be construed as prohibiting 41 Section 54 of the Act is replaced by the following: Review 54 On the fifth anniversary of the day on which this section comes into force, and every five years after that , the President of the Treasury Board must cause to be conducted an independent review of this Act, and its administration and operation, and must cause a report on the review to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the review is completed.